2010 Disability Statistics

SSA has released the 2010 Disability Statistics. In 2010, 1,026,988 disabled workers were awarded benefits. This statistic does NOT include only those individuals who qualified for SSI (Supplemental Security Income) only. This statistic represents only those persons who were "insured" to receive benefits by working five out of the last ten years. Here is the breakdown by impairments:


32.5% Musculoskeletal and connective tissue


21.4% Mental Disorders (more on that statistic in a bit)


10.2% Circulatory


9% Neoplasms


8.2% Nervous system and sense organs


18.7% Other


The Mental Disorders category was further analyzed by SSA which concluded the following:


11.2% Mood disorders


2.9% Organic Mental disorders


2.1% Schizophrenic and other psychotic disorders


1.8% Intellectual disabilities


.1% Developmental disorders


.2% Autistic disorders


3% Other

5 STEP SEQUENTIAL EVALUATION

The Social Security Administration has developed a five (5) step sequential process to determine if a claimant is eligible to receive disability benefits. This test is only for adults as children have a different test to determine eligibility.

Step 1: Substantial Gainful Activity

Is the claimant working? If so, how much? There is a presumption that certain amounts of income constitute substantial gainful activity (SGA). In 2011 the limit is $1000.00 per month. (Blind claimants have a higher limit). This amount changes almost yearly. Of course a person can still be found to be performing SGA even if the monthly income is less than $1000.  So if you are working at a substantial gainful level your disability process ends here. You do not continue to the other steps.

Step 2: Severe impairment

The claimant must have a severe impairment or a combination of impairments which significantly limit his physical or mental ability to do basic work activities without regard to age, work history, or education.  The level of proof at this level is considerably low and the majority of claimants proceed on past this level. 

Step 3: Listing of Impairments

SSA has established a list of impairments that qualify for disability benefits. At this stage a claimant must show that he meets or equals at least one of the listed impairments. This determination is made without regard to a persons age, education, or work history. Most claimants do not meet or equal a listing level impairment. The Social Security definitions and requirements contained in the listings are designed for the most severe cases. Even if a claimant does meet or equal a listed impairment the claimant must also meet the durational requirements that the impairment is expected to last 12 months or longer or end in death.  If a claimant equals or meets a listed impairment and meets the durational requirement benefits are awarded at this step. If the claimant does not meet or equal the listings then the case will proceed on to the fourth step.

Step 4: Past Relevant Work

If a claimant has a severe impairment (step 2) but does not meet or equal a listed impairment (step 3) then SSA will look at past relevant work. Past relevant work is work performed 15 years prior to the onset of disability. Given a residual function capacity does the claimant have the ability to return to their past relevant work? A residual function capacity is basically a determination of what a person can do despite their impairment. For example a person with COPD may no longer be able to lift 50lbs but can still lift 10lbs on a sustained basis. The constraints of the residual function capacity will determine if the claimant can perform their past relevant work. For example, if your past relevant work required you to lift 50lbs and walk 8 hours a day and your residual function capacity due to a back injury limited you to only lifting 25lbs and walking 4 hours a day then you would be found unable to return to your past relevant work. If you are determined that you can return to your past relevant work you will be denied disability at this step.

Step 5: Ability to perform other work

So SSA says that you cant go back to your past relevant work but now asks are there other jobs you can go do. The determination at this step factors in your residual function capacity, age, education, and prior work. The majority of SSA disability claims are decided at step 5. If it is determined that you cannot perform other work the a claim for benefits would be awarded. If you are over 50 don’t be alarmed by the requirements under step 5. SSA has a table called “GRIDS” that factor in age. If you are 55 and your past relevant work is Heavy concrete layer then SSA will require you to go be retrained to perform sedentary jobs.

SSA expands compassionate allowance list

Beginning this month the SSA will add 13 additional new conditions to its list of compassionate allowances. When a claimant for disability benefits alleges  one of the conditions listed on the compassionate allowance list the claimant will begin receiving benefits while the claim is being processed through the agency. This could save the claimant months of waiting for benefits to begin.  Unfortunately, many attorneys and representatives are not aware of this list and often allow a claim of benefits under this provision of SSA policy to go unused. The 13 new additional conditions are:


Malignant Multiple Sclerosis
Paraneoplastic Pemphigus
Multicentric Castleman Disease
Pulmonary Kaposi Sarcoma
Primary Central Nervous System Lymphoma
Primary Effusion Lymphoma
Angelman Syndrome
Lewy Body Dementia
Lowe Syndrome
Corticobasal Degenreration
Multiple System Atrophy
Progressive Supranuclear Palsy
ALS/Parkinsonism Dementia Complex

The Levels of the Social Security Disability Administration

What is the process for getting disability in Tennessee? First and foremost a claimant must file an application for disability benefits.  This can be done in a multitude of ways and I encourage the reader to visit my webpage for a video tutorial on filing an application.  Once an application is filed the case is sent to Nashville for a medical determination. The case must also meet certain requirements to be sent for a medical review.  In Nashville state employees process the case, order medical records, and sometimes schedule consultative examinations.  This first stage typically takes approximately five (5) months before SSA issues a decision. 

If a claimant is denied at the initial level then the claimant can request “reconsideration” within sixty (60) days of the initial denial notice. If a reconsideration is timely requested the case is sent back to Nashville to be reviewed by a second pair of eyes. This second stage takes approximately two – four weeks before SSA makes a decision.  The denial rate at this level is so great that many (including SSA staff) refer to this step as a rubber stamp denial. 

If a claimant is denied at the first and second stages then he can request a hearing before an Administrative Law Judge (ALJ).  The claimant may appear at this hearing and call witnesses on his behalf. Most claimants have representation at this level. Unfortunately the wait for this hearing is lengthy. As of the writing of this the average wait time from the second stage till the hearing is around twelve (12) months. 

If a claimant is unsuccessful at the hearing level then he may request a review from the Appeals Counsel within sixty (60) days from the ALJ’s decision. The Appeals Counsel will review the administrative record and can either approve, deny, or remand the case back to the ALJ. The Appeals Counsel is the final step in the SSA process. It is important to note that the Appeals Counsel can overturn even favorable decisions but such action is rarely heard of. 

Disability Defined

 What does “disability” mean for Social Security?

As a lawyer I can tell you – how something is defined can mean everything.  The term “disability” can have numerous different definitions depending on its setting. For instance, im sure many of you have heard that the military can sometimes deem someone to be disabled in percentages (ex. 35% disabled).  The definition of “disability” for Social Security purposes is defined in the Code of Federal Regulations at 42 U.S.C. § 423(d), §§ 1382c(a)(3). While the full definition is quite large its basic tenants are:

The inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not

less than 12 months;

This definition is important for several reasons. First off you will notice the absence of any percentages. This definition isn’t like the military’s – its either yes or no. Another aspect you may have quickly noticed is the durational requirement.  The impairment must be expected to end in death or last at least 12 months. So even the worst types of traumatic injuries may not meet the Social Security definition of disability if the condition is expected to improve within 12 months. 

*You must clearly understand the durational definition. Many people misconstrue this definition to mean that they must be out of work for 12 months before they can file for benefits. This is not the case. You do not have to be out of work for 12 months before you can file for disability under Social Security. Your condition must only be expected to last 12 months or longer. *

You will also find an absence of availability of jobs. Social Security is not meant to be an unemployment benefit. Therefore, if you cannot find a job, no jobs exist, nobody will hire you because of a criminal record, or that you have no transportation to a job will not be adequate grounds for a favorable disability decision. 

"INSURED" - WHAT DOES IT MEAN?

A disabled worker seeking to receive benefits from the Social Security Administration(SSA) must not only be disabled within the meaning of the law but also “insured”.  One must also be “insured” for retirement purposes but the calculations differ between the two types of benefits. One could be insured for retirement benefits even at an early age and not be insured for disability. This article will address solely the disability insured status requirements.

The formulae for becoming insured is to acquire “Quarters of coverage”. A quarter is represented by a quarter of the calendar year: Jan – Mar, April – June, July – Sept, Oct – Dec.  In order to obtain a quarter, a person must be paid a certain amount of wages during that quarter. The amount necessary is recalculated annually by SSA. To earn a quarter of coverage in 2011 is $1120. If a person earns more than is required for a quarter of coverage the excess can be applied to the next quarter. For example if you earn $2120 in Jan of 2011 then $1000 can be applied to your April – June quarter. It is quite possible for a person to earn an entire year of quarters in just a couple of months!

How quarters of coverage are applied to different individuals:

1.       For most workers to be insured they must meet the “20/40” rule. This means that you must have at least 20 quarters out of the last 40 quarters ending in the quarter that you became disabled.  A good rule of thumb that I use is – work 5 out of the last 10 years to be insured.

2.       A worker who is disabled prior to age 31 is not required to meet the 20/40 rule. This person need only have quarters of coverage in half of the quarters between age 21 and the date of onset of disability. If there are fewer than 12 quarters between age 21 and onset the worker must have 6 quarters of coverage nonetheless.

3.       Workers who are disabled due to blindness fall under a different test.

If a person does not meet the quarters of coverage requirement then they are not “insured” for Social Security purposes. The time when the insured status is expired is called the “Date Last Insured” (DLI).  It is extremely important to be determined by SSA to be disabled before the DLI or you could not be entitled to any benefits despite being severely disabled.  Persons who are not “insured” must rely on meeting the strict income and resource requirements of SSA’s Supplemental Security Income (SSI) provision.

New compassionate allowances

The Social Security Administration has a list of certain diseases and impairments that are deemed to be disabling. Persons with impairments that are on SSA's list of compassionate allowances are almost 100% guaranteed to be awarded benefits. An award decision usually comes within a couple of weeks. Should the person be denied benefits at the initial level, compassionate allowances cases retain priority status on appeal and receive expedited processing.

This month SSA announced twelve new conditions to the list. There are now 100 medical conditions in the  compassionate allowance category. The twelve new conditions are:

1. Aortic Atresia
2. Eisenmenger Syndrome
3. Endomyocardial Fibrosis
4. Heart Transplant Graft Failure
5. Heart Transplant Wait List -1A/1B
6. Hypoplastic Left Heart Syndrome
7. Left Ventricular Assist Device Recipient
8. Mitral Valve Atresia
9. Primary Cardiac Amyloidosis
10. Pulmonary Atresia
11. Single Ventricle
12. Tricuspid Atresia

You can view the complete list of compassionate allowances at ssa's website: www.ssa.gov/compassionateallowances.

Social Security Trust Fund Solvency

What is always a hot topic during elections and often discussed at the water cooler - Is the SSA trust fund going to run out? and if so - when?  The new report from the Board of Trustees was released on May 13th, 2011. The Social Security Act requires  the Board of Trustees to issue an annual report to Congress regarding the trust fund.

Before I give you the highlights of the 2011 report it is important to understand that there are actually two trust funds. The 'Old Age and Survivors Insurance' (OASI) and the Disability Insurance trust fund. For most intensive purposes they are treated as one trust fund.

The report found that if NO action is taken (i.e. no new laws that alter or amend the Social Security Act) that the trust fund will be able to pay 100% of scheduled benefits until 2036. The 2010 report stated that the  benefits would be payable until 2037.

More disturbing figures are discovered when you look at the solvency of each trust fund. The report finds that the disability trust fund will be depleted in 2018. That is not a typo - 2018. The much larger OASI trust fund is solvent through 2038.

Why is the disability trust fund in such danger? A recent paper by the Center on Budget and Policy Priorities opines that Baby Boomers have recently moved into their high-disability years. The number of disability beneficiaries has doubled since 1995. In addition, more women have moved into the workforce and have become eligible for disability benefits.

The entire 2011 Trustees Report can be found at www.ssa.gov/OACT. However, a much easier to read and understand paper was published by the National Academy of Social Insurance and can be found at www.nasi.org

SSA stops denials and suspensions based upon Parole violations

Beginning May 9, 2011 the Social Security Administration is  no longer suspending or denying benefits or payments based solely on a probation or parole violation warrant. The change comes as current pending litigation had certified those who were denied or suspended benefits as a result of this policy were deemed to be a part of a "class action" lawsuit against the administration.
This policy change applies to all cases at any stage of the administrative appeals process. Thus if you are awaiting a hearing on this issue it is possible that you could ask for an "on the record" hearing (meaning that you would not actually have to go to court) and attach the SSA new policy change.
Unfortunately, SSA will not take any action to remedy prior suspensions or denials based upon the previous policy.

Change in SSA policy - is diabetes disabling?

Effective June 7, 2011 the Social Security Administration (SSA) significantly changed its policy on how it views diabetes mellitus as a disabling condition. SSA provides criteria for multiple conditions and what must be present for certain conditions to be disabling. These definitions are referred to as "listings". Major disorders are grouped into large "listings" then subcategorized. For example skeletal listings are listed in 1.00 and back problems such as degenerative disc disease would be subcategorized as listing 1.04.

Diabetes mellitus previously existed under the Endocrine Disorders listing at 9.00 as listing 9.08.  SSA has now completely deleted diabetes mellitus as a listing level disabling condition. SSA justifies its change in policy stating that diabetes mellitus medical treatment has advanced significantly to the point where diabetes is detected as such an early age as to prevent long term disabling effects.

Current beneficiaries benefits will not be terminated.

While this is a blow to those who suffer the terrible effects of diabetes, there is still hope for being approved for disability benefits. While diabetes itself is not a listing requirement, the limiting physical effects of diabetes could reduce a persons ability to work to the point that they would be unemployable. Persons claiming diabetes as a disabling condition for social security benefits should contact an experienced attorney.

You can read the law change at 20 C.F.R. 404.1594(c)(3)(i) and 416.994(b)(2)(iv)(A). You can also read more at our website www.burtonandmckinnish.com

Social Security Hearings in Knoxville - What to expect

For many of my clients the Social Security Hearing is the first time they have ever been in a "courtroom" much less been called to testify. This blog is an outlay of what to expect at your Social Security Hearing in Knoxville TN.

INFORMAL SETTING

Social Security Hearings are not like what you see on T.V. courtroom dramas. The Hearing rooms are very small and informal. The tables are arranged in a "U" shape with the Judge at one end and you at the other. The court reporter and any experts (vocational or medical) will sit to your right. You will be escorted back to the hearing room from the waiting room by SSA staff. It is not uncommon for the Judge to not be in the room when you are first placed in the Hearing room. If a court reporter or an expert witness is in the room it is perfectly fine to engage with them in casual conversation. You should not however discuss your case or your disability with anyone in the room other than your attorney.

The tables will be equipped with microphones. Usually there will be one microphone for you and one microphone for your attorney. It is important to remember that these microphones do NOT amplify your voice so you will need to speak loud and clear to the Judge. The microphones are merely recording your testimony as required by SSA regulations.

The chairs that you will be sitting in are not special chairs nor are they particularly comfortable. Many of my clients suffer from back and knee related disabilities and have to stand up half way through the hearing. There is nothing wrong with having to stand up and move around if you are uncomfortable sitting. I advise my clients that they do not have to see permission from me or the Judge to stand.


INFORMAL RULES

You may have noticed already that I did not mention the Social Security's attorney. That is because SSA will not have an attorney at the hearing. The Judge will be asking you questions and your attorney will be asking you questions. The rules regarding testimony are relaxed in this setting. For example hearsay and and other types of testimony that would be excluded in a state trial will be admissible at the Social Security Hearing. You will most likely not see the attorney or the judge yell "Objection!" or any other type of argument as to admissibility of testimony at SSA hearings like what is normally seen in state trials.

One rule that is the same in Social Security Hearings and in state trials is that each must witness must swear or affirm to tell the truth under penalty of perjury.

DRESS CODE

None of the Judges in Knoxville have a written dress code. So if all you have is blue jeans then don't be afraid or ashamed to wear them to the hearing.  I have noticed that different attorneys give varying degrees of advice when it comes to what to wear to the hearing. I advise my clients to dress as if they were going to church and that if they do not go to church then to look "presentable".  I have heard of attorneys to advise their clients to look poor and impoverished.

I honestly do not think what a claimant wears to the hearing has much bearing on the Judge's decision. I am however superstitious about a couple of things.  I advise my clients against wearing shirts that sponsor social or sporting events (for example, "i just ran a 5k" t-shirt). Even if the shirt is not the clients or the client did not attend the event, I am superstitious about even wearing it to the hearing.  Also any shirts that reference alcohol or drug consumption is a big no-no.  I am also superstitious about women who paint their nails before a hearing. I noticed a Nashville Judge one time taking long stares at my clients nail polish. I couldn't help but wonder if the Judge was assessing this clients disability by the way she painted her nails.

LENGTH

SSA Hearings run from 30 -45 minuets. I have been involved in some hearings that have lasted less than 15 minutes. Depending on the facts and issues of each case, some cases can go longer than 45 minutes. Most cases that I have participated in that went longer than 45 minuets was not due to the medical issues but rather involved complex vocational and past work issues.

OUTCOME

The Judges in Knoxville have stepped away from informing the client at the hearing whether they have won their case. This practice has always been frowned upon since there is no security guard or bailiff in the Hearing room. I have noticed over the last few years that even the Judges who would tell claimants that they had won their case have not been issuing decisions from the bench.  In the majority of cases the Judge will issue you a written decision in the mail. The time frame varies greatly but I notice that my clients typically receive the decision in the mail within 8 weeks of the hearing.




I hope you have found this blog informative. If you have any suggestions about a blog topic you would like to see, please email me. As always, if you have any further questions related to Social Security Disability fee free to visit our website at www.burtonandmckinnish.com

Taxes on Disability Benefits

Some people have to pay federal income taxes on their Social Security benefits. This usually happens only if you have other substantial income (such as wages, self-employment, interest, dividends and other taxable income that must be reported on your tax return) in addition to your benefits.

No one pays federal income tax on more than 85 percent of his or her Social Security benefits based on Internal Revenue Service (IRS) rules. If you:

• file a federal tax return as an "individual" and your combined income*is
  • between $25,000 and $34,000, you may have to pay income tax on up to 50 percent of your benefits.
  • more than $34,000, up to 85 percent of your benefits may be taxable.
• file a joint return, and you and your spouse have a combined income*that is
  • between $32,000 and $44,000, you may have to pay income tax on up to 50 percent of your benefits
  • more than $44,000, up to 85 percent of your benefits may be taxable.
• are married and file a separate tax return, you probably will pay taxes on your benefits.